New York Typographical Union No. 6

NEW YORK TYPOGRAPHICAL UNION NO. 6 New York Typographical Union No. 6, AFL-CIO and New York Times Newspaper Division of the New York Times Company and Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO. Case 2-CD-610 September 19, 1980 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by the New York Times News- paper Division of The New York Times Company, herein called the Employer, alleging that New York Typographical Union No. 6, AFL-CIO, herein called the Typographers, had violated Sec- tion 8(bX4)(D) of the Act. A hearing was held pur- suant to notice at New York, New York, on June 4, 1980, before Hearing Officer Larry Singer. The Employer, the Typographers, and Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW, ap- peared at the hearing' and were afforded full op- portunity to be heard, to examine and cross-exam- ine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer filed a brief with respect to the merits of the dispute, and IBEW filed a "Second Motion to Dismiss the Sec- tion 10(k) Notice of Hearing," and a supplement thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejudicial error; they are hereby af- firmed. Upon the basis of the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The New York Times is a New York corpora- tion engaged in the publication and distribution of a daily newspaper. In the course and conduct of its business, the Employer annually receives gross rev- enues in excess of $1 million and purchases supplies valued in excess of $50,000 directly from firms lo- cated outside the State of New York. Accordingly, we find that the Employer is engaged in a business J Counsel for IBEW appeared "specially" at the heanng whereas he limited his participation to the issue of whether or not Sec. 8(bX4XiiXD) had been violated. 252 NLRB No. 39 affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The Typographers and IBEW are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in issue involves the service, mainte- nance, and repair of automated composing room equipment, known as the Harris System, which in- cludes, inter alia, 7 computers, approximately 250 video display terminals, and various printers, pho- totypesetters, disc drives, and computer consoles situated in the composing room and other areas within the Employer's New York facility. B. Background and Facts of the Dispute Beginning in the early 1960's the Employer began to utilize electronic equipment in the compo- sition of the newspaper, the repair and maintenance of which was assigned to employees represented by the Typographers. In 1974, the Employer and the Typographers entered into a collective-bargaining agreement which contemplated extensive introduc- tion of automated equipment into the Employer's composing room and other areas of the newspa- per.2 Pursuant thereto, the Employer in 1976 intro- duced the sophisticated Harris System which en- ables it to capture, store, retrieve, and manipulate news information on video display terminals; to as- semble news matter in appropriate print form; and to instruct computers to produce type in single- column form. The Harris Company, as manufactur- er of the equipment, provided installation and ini- tial maintenance of the new equipment. At or about that time, the Employer selected 24 of the 40 Technicians Services Department employees, who are represented by the Typographers, to be trained to perform maintenance and repair of the Harris System equipment. The Employer's actual assign- ment of the work to these employees, however, did not occur until February or March 1978. The instant dispute was initiated by the IBEW December 12, 1979, letter to the Employer de- manding arbitration of the work assignment which it claimed under section 8 of its contract with the Employer. Thereafter, the Employer notified the I The touchstone of their contract was the Employer's agreement to guarantee lifetime jobs to employees whose jobs are abolished by intro- duction of such equipment. 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Typographers of the IBEW demand and inquired whether it wished to participate in such arbitration. The Typographers responded by letter dated Janu- ary 8, 1980, which stated it would not participate and, further, that it would strike if necessary to protect its contractual jurisdiction over the work in question. In response to the Typographers strike threat, the Employer filed the instant charge on January 18, 1980. C. The Contentions of the Parties The Employer and the Typographers contend that the employees presently assigned to perform the work in dispute are entitled to it based on their superior skills and training, the Typographers con- tractual jurisdiction, the Employer's preference and assignment, industry and area practice, and econo- my and efficiency of the Employer's operation. The IBEW, as noted supra, did not take any po- sition at the hearing on the merits of the dispute, but contests the propriety of exercise of Board ju- risdiction. It also claims the disputed work under section 8 of its collective-bargaining agreement with the Employer. D. Applicability of the Statute At the hearing IBEW moved to dismiss this Sec- tion 10(k) proceeding on the grounds that the Em- ployer is abusing Board processes by initiating this proceeding in the absence of credible evidence of a threat in violation of Section 8(b)(4)(D). It further contends that agreed-upon methods of adjustment of the dispute exist; namely, its contractual obliga- tion to arbitrate such work assignment disputes and the AFL-CIO Internal Disputes Plan to which both Unions are bound and which, pursuant to a June 26, 1980, decision rendered by an impartial umpire under the plan, awarded the disputed work to its members and, therefore, constitutes a binding award of the work in issue herein. We find these contentions lacking in merit. The Typographers January 8 letter on its face clearly threatens strike action to protect its work jurisdic- tion. In addition, testimony by Mortimer, the Em- ployer's senior vice president, shows that such a confrontation reasonably could be anticipated if any more work were to be removed from the Ty- pographers jurisdiction because of already existing tensions associated with heavy staff reductions re- sulting from the Employer's ongoing program of automating its operations. Accordingly, we find reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. With respect to the existence of agreed-upon methods for the voluntary adjustment of the dis- pute, the record evidence shows no arbitration re- quirement in the collective-bargaining agreement between the Employer and the Typographers, 3 and the IBEW contract with the Employer is not in evidence. Moreover, there is no evidence that the Employer has agreed to submit work assignment disputes to the AFL-CIO Internal Disputes Plan and, therefore, that forum cannot be construed as an agreed-upon method of adjustment.4 According- ly, we conclude that the instant dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various factors.6 The Board has held that its determination is an act of judgment based on commonsense and experience reached by balancing those factors involved in each case. 6 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements Section 8 of the IBEW contract with the Em- ployer, which is quoted in the impartial umpire's decision accompanying its motion to dismiss and of which we take official notice, "concerns the work of . . . maintenance, servicing, repairing . . . elec- trical and electronic wiring apparatus or equip- ment." The Typographers contract work jurisdic- tion includes "all composing room work . . . all phototypesetting machines [and computers] ... when the computer is performing composing room work . . . and maintenance of all the foregoing equipment and devices .... " Neither contract clearly covers all of the work in dispute, and both present an equally legitimate basis on which to claim the work. Accordingly, we find that the factor of collective-bargaining contracts does not favor an assignment to the employees in either unit over those in the other. s The Typographers contract provides: It is agreed that this Contract determines the agreement of the par- ties covering the jurisdiction over work processes specified herein. Any dispute concerning such jurisdiction shall not be subject to arbi- tration. 4See Local Union 825, International Union of Operating Engineers AFL-CIO (Schwerman Co. of Pa. Inc.), 139 NLRB 1426, 1429 (1962). N.LR.B. v. Radio & Television Broadcast Engineers Union. Local 1212. International Brotherhood of Electrical Workers AFL-CIO [Colum- bia Broadcasting System], 364 U.S. 573 (1961). e International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). 272 NEW YORK TYPOGRAPHICAL UNION NO. 6 2. Employer, area, and industry practice For approximately 20 years the Employer has recognized the Typographers as collective-bargain- ing representatives of its employees who perform the type of work in dispute. With regard to area practice, testimony by the Typographers vice presi- dent, Crockett, discloses that members of Typogra- phers perform similar work at The New York Daily News and The New York Post newspapers. Crockett further testified that the practice of utiliz- ing typographers for maintenance of electronic composing equipment applies to the New York commercial printing industry, and to the newspa- per industry nationally. In view of the foregoing evidence, and the lack of evidence with respect to IBEW-represented employees, we conclude that the factors of employer, area, and industry practice favor an award of the disputed work to the em- ployees represented by the Typographers. 3. Skills and training The record evidence shows that, beginning in the 1960's, the Employer has been subsidizing a home study correspondence course in basic elec- tronics for composing room employees and others represented by the Typographers. It has also pro- vided them with on-the-job training and, as in the case of 24 employees selected to work on the Harris System, specialized training by manufactur- ers of particular equipment. The evidence further reveals that employees with composing skills and experience who are familiar with the characteristics of type, such as font, face, style, size, and position, have an obvious advantage in their ability to diag- nose malfunctions of electronic machinery whose function is to produce such type. Martin, the Em- ployer's director of prepress operations, testified that the employees currently assigned the disputed work have the background experience, skills, and training to maintain the Harris System equipment properly, and that the Employer is satisfied with their work performance. He further indicated that assignment of this work to any other employees would necessitate a training program for develop- ment of the requisite skills. Accordingly, we find the factor of skills and training favors an award consistent with the Employer's assignment. 4. Economy and efficiency Prepress Director Martin testified that the Em- ployer employs a large number of "underutilized employees" because of its contractual obligation to the Typographers to provide lifetime jobs for em- ployees whose jobs have been displaced by auto- mated equipment. He acknowledged that the Em- ployer's assignment of the disputed work was in part related to this available labor resource, where- as assignment to IBEW unit members would in- volve hiring additional employees and result in du- plication of the Employer's labor force. We find the factor of economy and efficiency favors an award to the employees in the Typographers unit. Conclusion Upon the record as a whole, and after full con- sideration of all the relevant factors involved, we conclude that the Employer's employees represent- ed by the Typographers are entitled to the disputed work based on their superior skills and training; the employer, area, and industry practice; and econo- my and efficiency of the Employer's operation. In making this determination we are awarding the work in dispute to employees who are represented by New York Typographers Union No. 6, AFL- CIO, but not to that particular organization or its members. This determination is limited to the par- ticular controversy which gave rise to this pro- ceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees of The New York Times Newspaper Divison of The New York Times Company cur- rently represented by New York Typographical Union No. 6, AFL-CIO, are entitled to perform the work of service, maintenance, and repair of automated composing room equipment, known as the Harris System, at the Employer's newspaper plant facilities in New York, New York. 273